By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagcasciacorg. __________________________________________________________________________________________________

Dear Legal Mailbag:

Every day we see the headlines about terrorism and inhumanity in various places in the world, and we should all be thankful that we live in a country that is safe and tolerant. Sometimes I worry that the middle school students where I work take our country for granted. Therefore, I make sure that all of the teachers in my school lead their students in saying the Pledge of Allegiance each day. Unfortunately, a little miscreant in my school is trying to cause trouble by railing against the Pledge. “Equal justice for all?” she tweets every day, “No way. Show your support for the less fortunate by sitting during the Pledge.” So far only a few fellow students have joined her in her protest, but I am concerned by her negative message.

I want to nip this in the bud because this student is undermining my efforts to instill patriotism and gratitude in our students. Can I discipline the student for her tweets? Can I at least require that all students, the troublemaker included, stand up during the Pledge out of respect for me and for our country?

Signed,
One Nation Under God

Dear Nation:

The answers to your questions are no and no. I appreciate your question because it gives us an opportunity to remind ourselves that this country is indeed great in part because of our commitment to the principle of free speech, even for middle school students. Moreover, this is hardly a new development; rather it is part of the fabric of our nation.

In 1943, our country was at war in both Asia and Europe, and the outcome of that conflict was far from certain. In that historical context, the United States Supreme Court made its seminal ruling in West Virginia State Board of Education v. Barnette that the expulsion of a student for not standing and saying the pledge violated his rights under the First Amendment. There, the student was a Jehovah’s Witness who was prohibited by his faith from saluting or pledging to symbols. However, the free speech principles that underlie the case apply to all students.

Twenty-six years later, observing that students (and teachers) do not shed their constitutional rights at the schoolhouse gate, the Court ruled more generally in Tinker v. Des Moines Independent School District (1969) that students retain free speech rights in the school setting unless administrators can reasonably forecast that their exercise of that right will result in material disruption or substantial interference with the educational process.

Here, you are fulfilling your statutory responsibility by giving students an opportunity to say the Pledge of Allegiance. Conn. Gen. Stat. Section 10-230(c) provides: “(c) Each local and regional board of education shall develop a policy to ensure that time is available each school day for students in the schools under its jurisdiction to recite the ‘Pledge of Allegiance.’ The provisions of this subsection shall not be construed to require any person to recite the ‘Pledge of Allegiance.’” However, as the statute contemplates, we cannot require any student to say the Pledge because the right to free speech includes the right not to speak. Even standing is symbolic speech. Accordingly, students are free to refrain from saying the Pledge or even standing during its recitation, as long as they are not disruptive. That is a lesson for all of us.